How Far Is Too Far: Verizon Argues Its Network Is Protected Under the Fifth Amendment

Categories: Tech

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There is a tenuous balance in the digital world between people who share things online, those with whom they share them and the person/entity in between that facilitates that sharing process. In the simplest terms, that entity is like a bank that holds your money between the time you receive it and the time you give it away. The problem is that, when the people doing the sharing are engaging in something illegal -- or deemed to be so -- the middleman is stuck holding the bag.

As a result, the government is mulling hard whether or not gatekeepers like Web site companies, hosting companies, Internet service providers and the like are responsible for what information people put on their machines that are accessible online. It's somewhat of an old question when it comes to exchanging goods. If someone sells a stolen item to someone else, who then sells it again, is the person who initially bought the stolen goods a fence or just an innocent third party who had no idea? That's where things get complicated.

At this point, you might be thinking, "What the hell does this have to do with me?" Good question. For the most part, unless you are trading messes of MP3s or illegal movies online, it probably doesn't affect you, but the more laws begin to place the onus on businesses to monitor their clients' activities, the more it will change your online experience.

One extreme example of that is a court brief filed by Verizon that aims to define all activity on its network as protected under free speech laws. In essence, since they control the means by which the content is delivered, they should have the right to decide which content they allow on their network.

"Broadband networks are the modern-day microphone by which their owners engage in First Amendment speech," Verizon writes.

And since it owns the microphone, Verizon believes it has the right to control the content that streams over it. "Just as a newspaper is entitled to decide which content to publish and where, broadband providers may feature some content over others," it argues. And since the government can't tell a newspaper that it has to print something, Verizon argues that the FCC can't tell it that it has to transmit something on its network.

What Verizon is saying is that it has the right to decide what content gets prominence on its network and what gets censored. Those are pretty stark terms. Truthfully, I doubt anyone including Verizon believes it will get a decision in its favor to prevent people from expressing themselves. But what if they decided that a corporate partner's Web site should be allowed to load substantially faster than its competitors? That would give them an automatic advantage.

If this is an exercise in free speech, it's an uncomfortable one at best, but it is at least marginally understandable considering the fact that the government is attempting to make them responsible for wrongdoings on their network. It's an overreach by Verizon in response to what some consider an overreach by the government.

If the government can hold Verizon responsible for, for example, allowing users to download child pornography, shouldn't Verizon have the right to monitor all customer downloads to look for that material? And, for that matter, what about anything that could potentially be considered illegal?

There are no easy solutions. The truth is that the answers will likely be provided by the courts over years and years of cases. But, despite the complexity, it is something that bears watching for all of us.

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